DETAILED ACTION
Amendments made March 3, 2026 have been entered.
Claims 2, 4, 5, 7-12, and 15-23 are pending.
Claims 10-12 have been withdrawn.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on March 3, 2026 has been entered.
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Claim Objections
Claim 23 is objected to because of the following informalities:
Claim 23 recites the same components multiple times. This is considered to be a typographical error. See for example “soybean meal” which is recited in lines 2, twice in line 3, and 4. Also see “dehulled soybean meal”. Upon reply Applicant is encouraged to check all terms within the claim for typographical errors.
Claim 23 which depends from claim 2, recites “the vegetable oil cakes comprises at least one…” Although this is understood in view of the claim language “at least one” to be “the vegetable cake” singular as recited in claim 2 line 3, it is suggested applicant amend claim 23 to the singular form for consistency of claim language.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The previous rejection of claims 19 and 20 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been withdrawn in light of applicant’s amendments made March 3, 2026.
Claims 21-23 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 21 and 22 recite parentheticals within the claims and it is unclear as to if the limitations within the parentheticals are optional, exemplary, or preferred. For example claim 21 recites “wheat (extruded)” It is unclear as to if the wheat is required to be extruded or not. For the purpose of prior art comparison, the examiner will consider the limitation in the broadest reasonable sense. It is suggested to remove the parentheticals and recite the component as intended.
Claims 21-23 recite broad and narrow limitations and thus are unclear. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). For example, claim 21 recites the broad recitation wheat, and the claim also recites wheat (extruded) and wheat flour which are the narrower statements of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
The term “lowest grade flour” in claim 21 is a relative term which renders the claim indefinite. The term “lowest grade” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear as to what flours would and would not be considered “lowest grade flour” and as to how such determination is made.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Note: “Livestock” is defined in the instant specification paragraph 3 as animals that are acclimatized and bred for human use of their products (milk, meat, eggs, hair, skin, fur, labor, etc.) and are bred in human captivity.
The rejection of claims 2, 4, 5, 7-9, 15-17, and 20 under 35 U.S.C. 103 as being unpatentable over Brintrup Meeder (US 2018/0184699) in view of Herrero et al (EP 2616058) has been withdrawn in light of applicant’s amendments made March 3, 2026.
The rejection of claim 19 under 35 U.S.C. 103 as being unpatentable over Brintrup Meeder (US 2018/0184699) in view of Herrero et al (EP 2616058), further in view of Udel Ed (“Effects of Antibiotics on Animal Feed” pages 1-3, November 1, 2019- date obtained from web.archive.org) has been withdrawn in light of applicant’s amendments made March 3, 2026.
The rejection of claims 2, 15-18, and 20 under 35 U.S.C. 103 as being unpatentable over Sasaki (JP H06303918A machine translation) in view of Herrero et al (EP 2616058) has been withdrawn in light of applicant’s amendments made March 3, 2026.
The rejection of claim 19 under 35 U.S.C. 103 as being unpatentable over Sasaki (JP H06303918A machine translation) in view of Herrero et al (EP 2616058), further in view of Udel Ed (“Effects of Antibiotics on Animal Feed” pages 1-3, November 1, 2019- date obtained from web.archive.org) has been withdrawn in light of applicant’s amendments made March 3, 2026.
Claims 2, 4-5, 7-9, 15-16, and 19-23 are rejected under 35 U.S.C. 103 as being unpatentable over Herrero et al (EP 2616058) in view of Shinzato et al (EP 1157616).
Regarding claims 2, 4-5, 7-8, and 21-23, Herrero et al (Herrero) teaches feed for livestock for increasing weight gain, increasing feed efficiency, and decreasing time to market (abstract and paragraphs 6-8) comprising:
a basal feed, i.e. animal feed preferably including corn and/or wheat, and soybean meal (paragraphs 27, 41, and 60);
a food additive including fat which would modify the food by increasing its fat content and thus is considered a “modifier” (paragraph 27); and
an effective amount of abscisic acid for weight gain (paragraphs 4, 6-8, 15, 18, and 21).
Herrero teaches an effective amount of abscisic acid in the feed composition is about 1-2000g/MT (about 1-2000ppm), preferably 5-500g/MT (5-500ppm), with 1 and 5ppm exemplified (paragraphs 26, 31, and claims 5 and 6), thus it would have been encompassed or at least obvious for the livestock feed of Herrero to comprise about 1-2000ppm, preferably 5-500ppm abscisic acid.
Herrero is silent to the livestock feed as comprising glutamic acid, wherein a weight ratio of abscisic acid and/or salt thereof to glutamic acid is about 1:3,600 to about 3,700,000 as recited in claim 2, preferably about 1:3,600-1,110,000 as recited in claim 7, or about 1:3,600 to 370,000 as recited in claim 8.
Shinzato et al (Shinzato) teaches a feed comprising 0.05-2.5% (500-25,000ppm) glutamic acid that increases body weight gain efficiency and feed efficiency in livestock (abstract and page 1 lines 9-10).
Regarding the feed as comprising glutamic acid, wherein a weight ratio of abscisic acid and/or salt thereof to glutamic acid is about 1:3,600 to about 3,700,000 as recited in claim 2, preferably about 1:3,600-1,110,000 as recited in claim 7, or about 1:3,600 to 370,000 as recited in claim 8, it would have been obvious for the feed of Herrero to contain 0.05-2.5% (500-25,000ppm) glutamic acid as Herrero teaches feed used for weight gain, and as Shinzato teaches that 0.05-2.5% (500-25,000ppm) glutamic acid is included in a feed for increases body weight gain efficiency and feed efficiency in livestock. Thus, the composition of the prior art would encompass the feed with a ratio of abscisic acid to glutamic acid including about 1: 500-25,000. The prior art discloses overlapping ranges. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Regarding claim 9, Herrero teaches that feed, i.e. animal feed to which the abscisic acid/modifier is added, is for livestock including mammals (paragraphs 6-8 and 15).
Regarding claim 15, as Herrero teaches the feed includes animal by-product (paragraph 27), the use of known types of animal by-products, including poultry by-product meal would have been an obvious suggestion of the prior art. To use a species of a disclosed genus would have been obvious and well within the purview of one of ordinary skill in the art.
Regarding claim 16, Herrero teaches that the feed contains vitamins and minerals including calcium (paragraphs 27 and 33).
Regarding claim 19, Herrero teaches the feed contains antibiotics (paragraph 33 and 41).
Regarding claim 20, Herrero is not specific to the feed as comprising at least one selected from the group including an antioxidant, a binder, and an emulsifier. However, Shinzato teaches that the glutamic acid is added to the feed with nucleic acid or glutamine (antioxidants) to achieve increased body weight gain and feed efficiency in the livestock (abstract). Thus, it would have been obvious for the feed of Herrero to comprise an antioxidant as discussed by Shinzato to achieve increased body weight gain and feed efficiency in the livestock.
Claims 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Herrero et al (EP 2616058) in view of Shinzato et al (EP 1157616), further in view of Bailey (“Mineral Supplements for Beef Cattle” Mineral Supplements for Beef Cattle | MU Extension University of Missouri Extension 2017 pages 1-12).
As discussed above, Herrero teaches feed comprising minerals for livestock for increasing weight gain, increasing feed efficiency, and decreasing time to market. Herrero teaches that feed, i.e. animal feed to which the abscisic acid/modifier is added, is for livestock including cattle (paragraph 15).
Regarding claims 17-18, Herrero is not specific to the type of minerals included in the feed as recited in claim 18. Bailey teaches that beef cattle require a number of dietary mineral for normal bodily maintenance, growth, and reproduction (page 1, paragraph 1) including magnesium which is most commonly supplemented with magnesium oxide added to grain to prevent grass tetany (page 2, magnesium paragraphs 1 and 2). Baily teaches that when magnesium levels are low grass tetany occurs which includes symptoms of frequent urination, erratic behavior and convulsions (page 2, magnesium section paragraph 1). It would have been obvious for the mineral in the feed of Herrero to be magnesium oxide in order to prevent grass tetany which includes symptoms of frequent urination, erratic behavior and convulsions. As claim 16, from which claim 17 depends recites, “the feed further comprising at least one selected from the group consisting of vitamins, minerals, and gluanidinoacetic acid”, the inclusion of vitamins recited in claim 17 is not required. Claim 17, does not necessarily further limit the invention of claim 16, in that it does not require that the vitamins be included in the product composition. Claim 17 simply provides a further selection of the choices within claim 16, thus claim 17 may still be satisfied by a reference meeting one of the other optional limitations recited in claim 16 and claim 17 is included in the rejection herein.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 2, 4-5, 7-9, and 21-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 15-17 of copending Application No. 18285189 (‘189) as amended April 7, 2026 or claims 15 and 17 of copending Application No. 18277407 (‘407) as amended March 18, 2026 or claims 13 and 15 of copending Application No. 18277365 (‘365) as amended March 18, 2026 or claims 15-17 of copending Application No. 18277408 (‘408) as amended December 3, 2025, each respectively in view of Webb, Jr. et al. (US 5,167,957).
Each of the copending applications claims a feed for livestock, and thus an animal feed which is a claimed basal feed, comprising: a modifier (microbial material ‘189; modifiers ‘407; proline ‘365; and arginine ‘408) and abscisic acid from 0.01-100ppm or 0.1-10ppm (‘189 claims 16 and 17; ‘407 claims 16 and 17; ‘365 claims 14 and 15; ‘408 claims 16 and 17), which encompasses the claimed ranges recited in instant claims 2 and 4-5.
Each of the copending applications is silent to the livestock feed as comprising glutamic acid, wherein the ratio of abscisic acid and/or salt thereof to glutamic acid is about 1: 360-3,700,000 as recited in claim 2, or about 1:3,600-1,110,000 as recited in claim 7, or about 1: 3,600-370,000 as recited in claim 8.
Webb, Jr. et al (Webb) teaches a feed for ruminants, which are known livestock, which provides sufficient nutrients and treats dietary deficiencies, wherein the feed comprises glutamic acid as component A and/or B (abstract and claims 1 and 2). Webb teaches that it was common practice to supplement the diet of animals with nutritional sources containing especially those amino acids which cannot be synthesized or to supplement the diet with sources which can be broken down by the body to form such amino acids otherwise the productivity and growth of the animals may be limited (column 1 lines 6-42).
It would have been obvious for the livestock feed claimed by each of the copending applications to contain glutamic acid in order to provide sufficient nutrients and treat dietary deficiencies in view of Webb.
Regarding claims 21-23, it is noted that as claim 2, from which claims 21-23 depend recites, “a basal feed including at least one selected from the group consisting of cereals, bran, vegetable oil cake, and animal feed” the inclusion of cereals as recited in claim 21, bran as recited in claim 22, and vegetable oil cake as recited in claim 23 are not required. Claims 21-23, does not necessarily further limit the invention of claim 2, in that it does not require that the cereals, bran, and/or vegetable oil cake be included in the product composition. Claims 21-23 simply provide a further selection of the choices within claim 2, thus claims 21-23 may still be satisfied by a reference meeting one of the other optional limitations recited in claim 2 and claims 21-23 are included in the rejection herein.
These are provisional nonstatutory double patenting rejections.
Claims 15-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 15-17 of copending Application No. 18285189 (‘189) or claims 15-17 of copending Application No. 18277407 (‘407) or claims 13-15 of copending Application No. 18277365 (‘365) or claims 15-17 of copending Application No. 18277408 (‘408), each respectively in view of Webb, Jr. et al. (US 5,167,957), further in view of Holma et al (WO 2016/126234).
As discussed above, each of the copending applications claims a feed for livestock. The copending applications are silent to the feed as comprising: feed material selected from the group including dried whey and dried skim milk as recited in claim 15, or vitamins, minerals, and/or guanidinoacetic acid as recited in claim 16, a vitamin selected from the group including riboflavin (b2) and folic acid (b9) as recited in claim 17 or a mineral selected from the group including molybdenum as recited in claim 18, or synthetic antibacterial agents or antibiotics as recited in claim 19, or at least one of antioxidants, binders, emulsifiers, and a regulator as recited in claim 20.
Holma teaches that feed material was known to comprise: milk protein powders which encompass dried whey; vitamins including vitamin B2 and B9; minerals including molybdenum; antibiotics; and emulsifiers (abstract, page 3 lines 13-29 and page 4 line 13, page 15 lines 30 and 31, page 16 line 10, page 17 line 32 through page 18 line 20, page 18 line 31 through page 19 line 28).
It would have been obvious for the livestock feed claimed by each of the copending applications to contain known feedstock ingredients, including dried whey, vitamins including vitamin B2 and B9, minerals including molybdenum, antibiotics in known forms, including synthetic and natural, and emulsifiers as taught by Holma for their known nutritional and/or functional benefits. Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows: This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients, which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
These are provisional nonstatutory double patenting rejections.
Response to Arguments
Applicant's arguments filed March 3, 2026 have been fully considered but are moot as the previous rejections have been withdrawn in light of applicant’s amendments, and a newly cited reference has been used to address the limitations that are argued.
Conclusion
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
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